Commonwealth v. Gambrel

1

COMMONWEALTH OF KENTUCKY APPELLANT v. SAMUEL GAMBREL APPELLEE

No. 2023-CA-0540-MR

Court of Appeals of Kentucky

November 8, 2024

APPEAL FROM JESSAMINE CIRCUIT COURT HONORABLE HUNTER DAUGHERTY JUDGE ACTION NO. 22-CR-00364

BRIEFS FOR APPELLANT:

Daniel Cameron

Attorney General of Kentucky

Jenny L. Sanders

Assistant Attorney General

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Emily Holt Rhorer

Frankfort, Kentucky

BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.

OPINION

JONES, A., JUDGE:

The Commonwealth submits an interlocutory appeal authorized under KRS^[1] 22A.020(4) from the Jessamine Circuit Court's order granting Samuel Gambrel's motion to suppress evidence. After our review of the facts and the law, we affirm in part, reverse in part, and remand for further proceedings.

I. Background

On October 14, 2022, at approximately 9:00 a.m., Officer Kyle Lamb of the Nicholasville Police Department was dispatched to a Walmart parking lot in Jessamine County to perform a welfare check. The dispatcher informed Officer Lamb that there were two individuals who appeared to be asleep or unconscious in a parked vehicle. Based on the license plate number of the vehicle, the dispatcher was able to tell Officer Lamb that the owner of the vehicle was Samuel Gambrel.

Officer Lamb arrived at the Walmart shortly before another police officer, Officer Howard. The two officers saw that, while the male driver appeared to be merely asleep, there was some concern about the condition of the female in the passenger seat because she was slumped forward, with her head hanging down. Officer Lamb approached the vehicle on the driver's side, while Officer Howard approached the passenger's side. At this point, the two officers discovered there was a third individual, a male asleep in the vehicle's back seat on the driver's side. Officer Howard tapped on the female passenger's window and woke the three occupants. The driver identified himself as Gambrel, the female passenger identified herself as Jennifer Gordon, and the male in the back seat identified himself as Nathaniel Atkins.

Officer Lamb would later describe the three individuals as cooperative, and they did not appear under the influence of drugs or alcohol. The officer further stated that the three did not demonstrate any suspicious conduct, but he also candidly admitted that he did not consider them free to leave during this encounter. At this time, the police asked the three occupants of the vehicle for their identification. Atkins informed Officer Lamb that he did not have his driver's license on him, but he gave the officer his social security number. Officer Lamb then asked a third officer who had arrived at the scene, Officer Tune, to "stand by" the vehicle door next to Atkins while he ran the information in his cruiser.

Upon running the information, Officer Lamb discovered that Atkins had three open warrants. The officers informed Atkins of the warrants and asked him to step out of the vehicle because he was under arrest. When Atkins exited the vehicle, Officer Tune observed a clear plastic bag, in plain view, where Atkins had previously been sitting. The plastic bag contained a substance which appeared to be methamphetamine. After the officers saw the plastic bag, they asked Gambrel and Gordon to exit the vehicle while they conducted a search. The officers found a black lockbox on the front passenger floorboard, and the key to the lockbox was found on Gambrel's keyring. Inside the lockbox, the officers found several clear plastic bags, a paper bindle, and a pill bottle - all of which contained a substance appearing to be methamphetamine. A search of Atkins following his arrest revealed a small quantity of cocaine wrapped in a dollar bill on his person.

As a result of this incident, the Jessamine County grand jury indicted Gambrel on five charges: (1) first-degree trafficking in a controlled substance (more than two grams of methamphetamine);^[2] (2) first-degree trafficking in a controlled substance (less than four grams of cocaine);^[3] (3) possession of drug paraphernalia;^[4] (4) possession of marijuana;^[5] and (5) being a first-degree persistent felony offender.^[6] Gambrel subsequently moved the trial court to suppress evidence, alleging the warrantless search of his vehicle violated his rights against unreasonable search and seizure guaranteed by Section 10 of the Kentucky Constitution and the Fourth Amendment of the United States Constitution. After a hearing conducted on February 24, 2023, the trial court granted Gambrel's suppression motion. The trial court focused on the fact that this was a welfare check of the occupants, and there was no reasonable articulable suspicion of criminal activity justifying the seizure of the vehicle occupants while they were asked for their identification. The trial court also found that the attenuation doctrine, an exception to the exclusionary rule, did not apply in this case due to the flagrancy of the officers' conduct. This appeal by the Commonwealth followed.

II. Analysis

"Citizens are protected from unreasonable government searches and seizures by the Fourth Amendment of the United States Constitution and Section 10 of the Kentucky Constitution." Commonwealth v. Wilson, 625 S.W.3d 252, 255 (Ky. App. 2021) (citation omitted). In construing the protection offered by Section 10 of the Kentucky Constitution, we are guided by the United States Supreme Court's interpretation of the federal Fourth Amendment. Commonwealth v. Reed, 647 S.W.3d 237, 243 (Ky. 2022).^[7]

"Warrantless searches are 'per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.'" Robbins v. Commonwealth, 336 S.W.3d 60, 63 (Ky. 2011) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The exclusionary rule prevents the admission of evidence against the accused which was obtained in violation of the Fourth Amendment. Warick v. Commonwealth, 592 S.W.3d 276, 280 (Ky. 2019).

The standard of review for a suppression motion has two parts:

First, we review the trial court's findings of fact under a clearly erroneous standard. Under this standard, the trial court's findings of fact will be conclusive if they are supported by substantial evidence. We then conduct a de novo review of the trial court's application of the law to the facts to determine whether its decision is correct as a matter of law.

Whitlow v. Commonwealth, 575 S.W.3d 663, 668 (Ky. 2019) (quoting Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015)). "Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Nat. Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994).

The Commonwealth presents two issues on appeal. First, it argues that the trial court incorrectly ruled that Gambrel was "seized" within the meaning of the Fourth Amendment. In resolving whether Gambrel was seized, we must first examine the exact nature of his interaction with the police. "There are three types of interaction between police and citizens: consensual encounters, temporary detentions generally referred to as Terry^[8] stops, and arrests." Baltimore v. Commonwealth, 119 S.W.3d 532, 537 (Ky. App. 2003).

The type of interaction is important because the Kentucky Supreme Court has held that "an officer reasonably may ask for the identification and perform a criminal-records check of a driver and any passengers during an otherwise lawful traffic stop to determine an individual's prior contact with law enforcement." Carlisle v. Commonwealth, 601 S.W.3d 168, 179 (Ky. 2020). If Carlisle applies to the facts of this case, the police did not illegally seize the vehicle's occupants when they were asked for identification, and the trial court erred when it suppressed the evidence resulting from Atkins's arrest.

However, given the facts presented here, the police officers were not conducting an "otherwise lawful traffic stop" based on a reasonable articulable suspicion of criminal wrongdoing, i.e., a Terry stop. Id. at 175. Officer Lamb admitted that there was no reasonable suspicion of criminal wrongdoing during the encounter. This was a welfare check of the vehicle's occupants. Once the officers determined the occupants were not intoxicated or otherwise in need of assistance, the mission of the welfare check was complete. Accordingly, the trial court correctly treated this welfare check as belonging in the first category of police interactions in Baltimore, a "consensual encounter."

Nevertheless although there was no basis under Carlisle to detain the vehicle occupants in order to obtain their identification, the mere fact that police officers approached the vehicle did not create a seizure. In its opinion and order, the trial court correctly noted that "a seizure does not occur simply because a police officer approaches an individual to ask a few questions." (Record (R.) at 31) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)). Furthermore, Officer Lamb's requests for information did not necessarily transform the consensual encounter into a seizure. "[A] request for identification by the police does not, by itself, constitute a Fourth Amendment seizure." Commonwealth v. Garrett, 585 S.W.3d 780, 791-92 (Ky. App. 2019) (quoting I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984)). Similarly, the presence of more than one police officer at the scene does not necessarily create a seizure under the Fourth Amendment. "[A]...